Appeal No. 2005-2111 6
Application No. 09/827,454
1443, 1444 (Fed. Cir. 1992). If that burden is met, the burden then shifts to the applicant
to overcome the prima facie case with argument and/or evidence. Obviousness is then
determined on the basis of the evidence as a whole and the relative persuasiveness of the
arguments. See Id.; In re Hedges, 783 F.2d 1038, 1040, 228 USPQ 685, 687 (Fed. Cir.
1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In
re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 146-147 (CCPA 1976). Only those
arguments actually made by appellant have been considered in this decision. Arguments
which appellant could have made but chose not to make in the brief have not been
considered and are deemed to be waived [see 37 CFR §41.67(c)(1)(vii)].
Turning first, to the rejection of claims 18, 19, and 21, the examiner applies
Akkapeddi to independent claim 18 as follows:
Figures 1 and 2 of Akkapeddi are said to disclose a transceiver (satellite 10)
constructed to transmit an interrogating beam. A communication station, though not
explicitly labeled, is said to be shown by the elements receiving and processing the
transmitted beam. These elements are regarded by the examiner as collectively showing
a communication station. The communication station is then said to depict a phase
conjugator 16.
The examiner recognized that Akkapeddi’s phase conjugator 16 is a photorefractive
crystal-type phase conjugator element that requires a pump beam from laser 20, and that
the phase conjugator is not disclosed as a broad area intra-cavity phase conjugator, as
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